The Butterfly Effect of Publishing References to Harmonised Standards in the L series

By Annalisa Volpato and Mariolina Eliantonio

A small change can have big consequences. Some of these changes may be unplanned and unpredictable. Some represent welcome developments that complement and contribute to long-running narratives of progress. Arguably, the recent publication of a reference to a harmonised standard in the L series of the Official Journal of the European Union belongs to the latter category. It may yet, however, prove to have unintended consequences that go beyond that which was originally envisioned.

Technical standards have long played a fundamental role in the regulation of the internal market. According to the regulatory technique of the “New Approach”, EU directives establish only the essential requirements of general interest of a product, while referring the detailed definition of technical aspects to private organizations composed of experts and representatives of the business sector, i.e. the European standard-setting organisations (ESOs). To this end, the European Commission makes a request to one of these ESOs and, where a standard satisfies the requirements set out in the request and in the corresponding Union harmonisation legislation, it publishes a reference to it in the Official Journal. Through this procedure, these standards elaborated by private European standardisation bodies are granted a presumption of conformity with the secondary EU law measures they are aimed at complementing. Consequently, they are endowed with the qualification of ‘harmonised standards’.

Recent developments in EU legislation (see Regulation EU) No 1025/2012) and in the case law (see, inter alia, Case C-171/11, v DVGW) have progressively changed the view of standardization as a purely non-binding, private phenomenon. In particular, the James Elliott case established the jurisdiction of the European Court of Justice with regard to the interpretation of harmonised standards in a preliminary reference under Article 267 TFEU, clarifying that harmonised standards shall be considered as “measures implementing or applying an act of EU law” and, therefore, “part of EU law”. This ruling of the Court has thus contributed to strengthen the claims of an unstoppable “juridification” of harmonized standards, fostering the debate on their legal qualification under EU law (as discussed here, here and here).

Against this background, the decision of the European Commission to publish the reference to the harmonised standardEN 301 549 V2.1.2 in a Commission Implementing Decision in the L series of the Official Journal is a remarkable, yet not entirely unexpected follow-up to the recent judicial developments. While the previous practice of publishing the reference to harmonised standards in a Commission’s Communication in the C series of the Official Journal (for a recent example, see here) was consistent with the original conception of harmonised standardisation under the New Approach, this recent shift in the Commission’s practice arguably represents a further step in the direction of a fully-fledged recognition of the legal effects of harmonised standards as part of EU law. However, such a shift is capable of having significant implications not only for their legal position, but also with regard to applicable procedures and the judicial review of harmonised standards.

Firstly, the use of an implementing decision for this purpose raises issues regarding the procedure and control relating to such a measure. One may argue that, being an implementing act within the meaning of Article 291 TFEU, this decision should be subject to the control of the Member States through the comitology procedures established in Regulation (EU) No 82/2011 (the “Comitology Regulation”). In this sense, this change should introduce a further power of control on harmonised standards for the Member States. However, according to Article 1 of the Comitology Regulation, the committee procedures apply “where a legally binding Union act […] identifies the need for uniform conditions of implementation and requires that the adoption of implementing acts by the Commission be subject to the control of Member States.” The Commission interpreted this Article as recognising that not every implementing act must be subject to the comitology system (see European Commission, Guidelines for the Services of the Commission on Implementing Acts, SEC(2012) 617 Brussels, 25 October 2012, paras. 6-8). In this regard, while prescribing the comitology procedure for the request to issue a harmonised standard, Regulation 1025/2012 does not expressly require the involvement of a comitology committee for the act containing the reference to a harmonised standard in the Official Journal and, in fact, there is no evidence that the decision of the Commission was examined by the representatives of the Member States.

Yet, this conclusion appears at odds with the strict position of the General Court in Netherlands v Commission (Joined Cases T-261/13 and T-86-14), which concerned the adoption – without a comitology procedure – of non-binding acts establishing the methodological framework for the implementation of the Regulation on harmonised indices of consumer prices. There, the Court upheld the argument that the facts that the parent act did not expressly require it, and that the measures were not binding, do not exempt these measures from the application of the comitology system. In other words, the Commission is prevented from circumventing this system by adopting measures which are formally soft law, but in reality substantially shape the application of a legislative act.

Secondly, the decision of publishing the reference to harmonised standards in the L series of the Official Journal has important consequences for the possibility of judicial review. In the earlier setup, although the Court upheld that harmonised standards can be reviewed in preliminary questions of interpretation and, perhaps, validity under Article 267 TFEU, it refused to consider them as “acts of EU institutions, bodies, offices or agencies of the Union”, thus precluding a direct action under Article 263 TFEU. It was argued, however, that the legality of the adoption of the harmonised standard could be indirectly raised before the Court by challenging the Commission’s Communication. This possibility was also suggested by the Court in Global Garden, but it appeared controversial because of the soft nature of the Commission’s Communication publishing the reference to a harmonised standard. As a consequence of the recent shift, the nature of ‘reviewable act’ of the Commission Implementing Decision publishing the reference can no longer be called into question. Whether this novelty will actually open the door to judicial review of European harmonised standards is, however, still a matter for debate.

Indeed, even without the hurdle of the reviewable act requirement, and even assuming that the Commission Implementing Decision qualifies as a ‘regulatory act not entailing implementing measures’ for the purposes of Article 263(4) TFEU, the standing of non-privileged applicants to challenge the Decision containing the reference will still be hard to prove. This is because non-privileged applicants still need to prove that the challenged measure is of direct concern to them. This condition will only be met if the measure is capable of directly producing effects on the applicant’s legal situation (see, inter alia, Case C‑486/01 P, Front National). This criterion might especially be hard to fulfil with respect to the so-called Annex III organisations, whose task it is to protect ‘weaker’ interests (such as environmental or consumer interests) in the standardisation process. This conclusion is supported by a recent case of the General Court, in which a claim was brought by a number of environmental organisations against an Implementing Regulation of the Commission. Here, the Court concluded that “no provision of the contested act is directly applicable to the applicants, in the sense that it would confer rights or impose obligations on them. Consequently, the contested act does not affect their legal position, and therefore the condition of direct concern […] is not met” (para 62).

On the whole, the recent shift of the Commission in the practice of publishing the references to harmonised in the L series instead of the C series of the Official Journal can be seen a positive development. It amounts to an official recognition of the legal effects of this publication and of the change of harmonised standards’ position under EU law. At the same time, however, it poses new questions with regard to the procedural and judicial control of standards. While this may necessitate a comitology procedure in the adoption of the Commission Implementing Decision publishing the reference, its qualification as a reviewable act is now quite clear. Yet, significant hurdles still stand in the way of guaranteeing judicial review of harmonised standards. Thus, for now at least, the calls for further judicial protection of individuals and Annex III organisations in relation to European standardisation remain unanswered.